Hon. Robert S. Calvert OPINION NO. WW-437 

Comptroller of Public Accounts 

Capitol Station Re: Whether Comptroller 

Austin, Texas, may permlt correction of 

Inaccurate claim for refund of motor fuel taxes 

Dear Mr. Calvert: subsequent t6 Its filing. 

We ,q&te the followlng,excerpt from your letter of 

April 29, '1958, requesting our opinion on the above captioned matter: 

"The claimant filed a claim, duly sworn to, 

for refund of tax paid on 8,465 gallons of motor 

fuel shown In the claim form to have been used 

entirely off the roads and highways, refundable, 

and In the space on the claim form headed, 'Qallons 

Used on Roads and Highways, No Refund', the word 

'none' had been typ:d In. 

"Investigation of the claim In the field revealed that a considerable part of said motor fuel 

Chad beerI used taxable In trucks, pickups and a Jeep 

on the highways. 

"The claimant stated that the claim had been 

prepared by a new bookkeeper aided by the local 

Farm Bureau Office, and that he signed the claim 

without noticing that the taxable highway fuel 

had not been deducted. All previous claims filed 

over the years showed careful preparation and large 

deductions for taxable highway use. Obviously, the 

claim was filed without wllful Intent to obtain tax 

refund to which he was not entitled." 

The Comptroller's form 7065-11 for farmers and ranchers 

making an affidavit for claim of refund also contains the 

following question: "Have you used any fuel covered by 

Invoice of exemption on the roads and highways In any vehicle (,lncluding tractors hauling products, or doing c:stom 

work)?' To this question the applicant answered "yes. 

Thus the claim was Inconsistent on Its face. The Invoices 

of exemption which were attached to the application and 
Hon. Robert S. Calvert, page 2 (WW-437) 

which were made out at the time the gas was used correctly 

stated the amount and purposes for which It was used. 

You ask whether the entire claim has become forfeited 

or whether the Comptroller may allow a revlslon of the 

application so as to permit recovery of the amount of refund 

to which applicant was actually entitled. 

Article 7065b-13, Vernon's Civil Statutes, authorizes 

a refund of motor fuel taxes In certain Instances. We quote. 

the following pertinent provisions of this article: 

"(a) In all refund claims filed under this section 

the burden shall be on the claimant to furnish suffl- 

,,clent and satisfactory proof to the Comptroller.of the 

clalmant~s compliance with all provisions of this 

Article; otherwise, the refund claim shall be denied. 

"(b) Any person (except as hereinafter provided), 

who shall use motor fuel for the purpose of operating 

or propelling any~statlonary gasoline engine, motorboat, aircraft, or tractor used for agricultural purposes, or for any other purpose except In a motor 

vehicle operated or Intended to be operated upon the 

public highways of this State, and who shall have'pald 

the tax Imposed upon said motor fuel by this Article, 

either directly or Indirectly, shall, ivhen such person 

has fully complied with all provisions of this Article 

and the rules and regulations promulgated by the 

Ce tax 

paid by him less one and one-half per cent (l&6) allowed 

distributors. wholesalers and jobbers, and retailers 

under the provisions of Section 2 (b)of this Article 

. . . 

I, 

. . . 

"(f) Any person entitled to file claim for tax 

refund under the terms of this Article shall file such 

claim with the Comptroller on a form prescribed by the 

Comptroller within six (6) months from the date the 

motor fuel was delivered to him, or from the date,the 

motor fuel was lost, exported or sold to the United 

States Government, and no refund of tax shall ever be 

made where it ~appears from the invoice of exemption, 

or from ,the affidavits or other evidence submitted,, 

that the sale or delivery of the motor fuel was made 

more than six (b) months prior to the date.the refund 

claim was actually received In the Comptroller's office. 
Ron. Robert S. Caivert, page 3, (,>X-437) 

The refund.clalm, with all dupXcate Invoices of 

exemption required by law to be Issued with the 

sale of refund motor fuel Included as a part of 

said claim, shall be verified by affidavit of the 

claimant, or a duiy authorized agent of the clalmant, and shall show the quantity of refund motor 

fuel acquired and on hand at the beginning and 

closing dates of the period ccvered in the refund 

claim filed. 

"It shall be the duty of every person claiming 

tax refund to verify the 'contents of the claim filed 

and any such person who shall file claim for tax refund on any motor fuel which has been used to propel 

a motor vehicle, tractor or other conveyance upon the 

publ:c highway of Texas for any purpose for which a 

tax refund is not akthor:zed herein, or who shail 

file anv duollcate invoice of exemntion In a claim 

for tax refund on which any date, ‘figure or other 

material Information has been falslfled or aitered 

after said duplicate Invoice OF exemption has been 

duly issued by the refund dealer and delivered to 

the claimant, shall forfeit his right to the entire 

amount of the refund claina filed." (Emphasis supplied 

throughout.) 

We think that Article 7065b-13 is plain and unambiguous. 

Under Its specific terms the claimant has the burden of showing compliance with all of the provisions of the article and 

the rules and regulations promulgated by the Comptroller. 

Such full compliance is requisite to reimbursement .of the tax. 

The claim for refund In this case did not fuliy comply, but, 

on the contrary, speclficaliy failed t0 exclude the amount Of 

gas which had been used in operating motor vehicles upon the 

public highways of this State. 
Hon. 

that 

Robert S. Calvert, page 4, (W-437) 

The statute speaks in clearly mandatory terms In stating ". --_ . -~ - . 

ciaim for tax 

In Cpini.on No. v-1487 this office sdvl.sed you that the 

tax refunds authorized by the Motor Fuel ?;ax :~aw are in the 

nature of exemptions or exceptions and must be &trlctly construed. The statutory procedure mustbe strlct;y complied 

with in order to entitle the cfaims,nt tc the right granted 

h?m by the statute. 

The results which ensue in thl.s case are no harsiier then 

those which ensue In many cases where a taxpayer mistakenly 

or unintentionally fails to comply wlr,h the provls:ons of t,ne 

law. Section ff) of Artl.c?e *(065b-13 expressly provides 

that no refund of tax shail ever be mad? in those cases in 

wnich the sale or delivery of the motor fuei was made more 

than six months prior to the date the refund claim was rec~eived 

In the Comptroller's office. No one would question the mandatory nature of this provision, yet a taxpayer tight aa lnnocently and mistakenly fall to file his claim for reftlnd wlthln 

the prescribed six months' period as he might mistake the 

number of gallons of motor fuei on which the amount of his 

refund should be based. As a practical matter, the taxpayer 

rather t.han the-Comptrolier must shoulder the burden of 

ascertaining the correctness of his claim, or the burdens 

of enforcing the Motor Fuel Tax law would be immeasurably 

Increased. 

in any event, regardless of our vler; as to the deslrabillty or undesirability of the result we have reached in this 

case, it has been stated tha~t It Is the proper function of a 

court to enforce the law as made by the Legisiature rather 

than to announce what the law should be or to speculate as to 

why it Is as It Is. No court is authorized under any pretext 

to nullify, repeal or rewrite an unambiguous act to conform 

to its own notions of justice or wisdom. 39 Tex. Jur. 163, 

164, Statutes, Sec. 89. Certainly this office could not do 

that which is beyond the authority of a court of law. You are 

therefore advised that the claimant in the case you have submitted for our consideration has forfeited his right to'the 

entire amount of'the claimed refund. 
Hon. Robert S. Calvert, page 5, (:/;5;-:.!>7> 

SUMMARY 

Where claim for refund of motor fuel 

taxes included a claim for refund on motor 

fuel which had been used for a purpose for 

which a tax refund was not authorized, 

claimant forfeited his right to the entire 

amount of the. refund claim filed. 

Very truly yours 

WILL WILSON 

Attorney General of Texas 

APPROVED: 

OPINION COMMITTEE: 

George P. Blackburn, Chairman 

Howard Nays 

Leonard Passmore 

REVIRWEDPORTHE ATTORNRYGENERAL 

BY: 

W. V. Geppert